Criminal Liability for Infringements of Well-known Trademarks Rights: The Demand and Possibilities
Abstract
Purpose – to examine the demand for the infringements of Well-Known Trademarks rigthts
criminalization and to examine the possibilities to protect the Well-Known Trademark rights by
criminal measures without infringement of criminal law principle nullum crimen sine lege (“no
crime without law”) and other defendant rights.
On the one hand, the TRIPS1 agreement foresees the need to apply criminal liability for
counterfeit trademarks related only to the registered trademarks. On the other hand, not
registered, but the Well-Known Trademarks (product) counterfeit causes a threat and violates
criminal codes stored values in states usually more than registered trademarks, because they are
usually more prevalent, recognized and appreciated, and they are more trusted.
It is particularly important to protect the market from the counterfeit specialized food
market products for people with allergies (products without lactose, gluten, etc.), with specific
diseases (diabetes, etc.). Also, there is a lot of risk in children goods as counterfeited children
goods; toys often contain unauthorized or even toxic substances. When we are talking about the
registered trademarks, regardless of their prevalence and merchantability in society, these
trademarks are protected by the criminal law. Trademark registration is objectively determined
circumstance. However, when it comes to a non-registered trademark, there are legal barriers
related to the rights of a defendant in a criminal procedure by the criminal law measures. As a
Well-Known Trademark is recognized exclusively by a court decision, it results in an inability to
check whether a particular use of a Trademark is criminal until the national court’s
(administrative unit) decision.
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